July 9, 2002
7:20 PM   Subscribe

Outside of traditional IP structures, there has been ongoing research by WIPO and other organizations to develop a system of remuneration for the use of Traditional Knowledge and Folklore. How could lines be drawn fairly so indigenous cultures could see some kind of return? If you think it's fair to compensate a tribe for technological and pharmaceutical contributions to patents, what about a royalty for that Maori tattoo design on your shoulder? What about drumming styles that have localized roots somewhere in Africa? What would you say is reasonable?
posted by anathema (28 comments total)
Call me a kook, but I just can't stomach the idea of commodifing someone's culture, no matter who benefits. Besides, where do you draw the line?
posted by lilboo at 8:03 PM on July 9, 2002

I agree. Good intentions but shouldnt ancient human knowledge and traditions and culture be considered 'public domain'?
posted by vacapinta at 8:09 PM on July 9, 2002

I believe the pendulum needs to swing the other way, and we need to get rid of intellectual monopoly laws for a while. We need to see if that really leads to a world devoid of art as the IM protagonists proclaim or world in which art and thinking becomes more tightly coupled with the fabric of our culture. I believe the latter seems more likely given all the creativity that is overshadowed by the commercial need to emphasize art that appeals to a broadcast audience.
posted by willnot at 8:16 PM on July 9, 2002

Considering economic imbalances between the nations that have and the nations that have-not, I don't think it's a bad idea. But exactly, how do you begin to draw these lines?
posted by anathema at 8:17 PM on July 9, 2002

Instead of getting rid of the IP laws, how about more of a focus on authors rights, instead of the rights of, lets say, copyright owners. Compared to the US, most of Europe recognizes moral rights and authors rights to a far greater extent.
posted by anathema at 8:21 PM on July 9, 2002

Information will cease to be a commodity once we can digitize (and easily share) anything. And we're well down that path, wouldn't you say?
posted by WolfDaddy at 8:27 PM on July 9, 2002

Would that mean that the US would get money everytime someone played jazz?
posted by atom128 at 8:29 PM on July 9, 2002

I think an argument can be made that relaxing our existing IP structures would help developing nations a lot more than extending the model to cultural institutions.

Microsoft collecting on their software rights in China to (you know, eliminating software piracy, which, evil as it is, surely does more for the local economy) is not going to be off-set in the local economy if they start collecting on Noh theatre interpretations in the west.

Maybe that's a bad example, but you know what I mean.
posted by lilboo at 8:31 PM on July 9, 2002

It seems like a horrible idea to me, and I agree with willnot. My god, in both direct intent and precedent, I can't see how it would have any positive effects. And don't try to tell be it would benefit indigenous cultures, it would be used against them by people who could afford lawyers, and would at best provide an income stream for petty dictatorships.

Anathema, I agree that author rights might be a better fight than the abolition of IP law, but only because it has a chance in hell of working. Copyright for twenty years, no extensions, and ten for holders who are not creators, that's what I'd like to see.

I keep seeing this idea that every interaction should have a price tag associated with it, that all exchange of ideas should come at a cost, and I hate it. I want to be compensated for those things I create, not for the work of others to which I or my culture may have indirectly contributed, and likewise I don't feel I am responsible for doling out fees to everyone who influences my work. Pay me for what I make, the rest I give freely, as it should be. Human knowledge is created by building on what came before, and the try to commodity any step in that process can only be a hindrance to progress.
posted by Nothing at 8:36 PM on July 9, 2002

Let's say a tribe in the Amazon knows of this spiffy tree that cures [something people don't like]. Big pharmaceutical company comes in, develops drug from tree, sells drug, makes lots of money...

Now, does 1% of revenue seem a reasonable royalty? (I really don't know, but I doubt margins are all that tight for the drug companies.) So this tribe in the Amazon now has a couple million dollars. Whoa. There's a whole can of worms right there.

How long does a traditionally poor culture last when suddenly faced with large sums of money and inevitable introductions to modern Western culture? Maybe they keep their old ways and only use the money for things like medicine and improvements of their general well-being. Or maybe they get into the "Western culture groove" and ditch their own culture. Maybe the money should be given with the stipulation that they take classes educating them about the corrupting evils of Western culture. "You can have this money, but we're telling you now, it's the root of all evil. Enjoy!" Alternatively, one could argue that it's their own choice if they decide to do away with the old and bring in the new via Amazon.com and Fedex, and there ain't nothin' wrong with that.
posted by whatnotever at 8:37 PM on July 9, 2002

you know, eliminating software piracy, which, evil as it is, surely does more for the local economy

China has its own software industry that loses; in 1998 it employed 103,000 people and generated $500 million in taxes and $6.2 billion in economic activity. Price-Waterhouse estimated that a 10% decrease in piracy would net China $77 million more in taxes, a half billion in activity, and 13,000 more jobs. Of the 30,000 CS and CE graduates coming out of their state schools, only half are employed locally; that's a bad investment for the state. What China loses in your example is import tariffs.
posted by skyline at 8:44 PM on July 9, 2002

Sure China's software industry suffers, but we are talking about the black market here. I'm not saying that it's right, I'm just outlining the money trail. Microsoft money goes to Seattle, but illegal trade profit tends to stay a little closer to home.

Besides, who can say that the market\the money is really on the table for China's software industry to take?
posted by lilboo at 8:53 PM on July 9, 2002

Given the Microsoft monopoly, that is...
posted by lilboo at 8:55 PM on July 9, 2002

BTW, anathema - you post the coolest topics! :-)
posted by lilboo at 8:55 PM on July 9, 2002

Something about this worries me -- if this is to be undertaken as an extension of existing IP protection practices, I can foresee such a project being used more to silence than to reward. After all, wasn't the DMCA used by Adobe in order to keep a lid on the weak protection their "eBook system" afforded the artists who made use of it?

Besides how do you determine who should be rewarded for what? When it comes to issues of folklore and traditional knowledge, it's often a safe bet that those who began such usages are no longer around. Who gets the prize then? Governments? Would that mean that the governments of North America would ultimately be representing, say, native americans? UN agencies? That may not be so unlikely as we think, what with WIPO being itself a UN agency.

Suppose you were a writer... with such "recognitions" in place how could you be sure of your own right to self-expression?
posted by clevershark at 9:08 PM on July 9, 2002

The purpose of copyright as laid out in the Constitution of the United States of America (Article 1, Section 8): "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Limited Times, people. The purpose of copyright is not to reward the innovators. That is only a side effect. The purpose is to increase the knowledge freely available to humanity.

Copyright is the only one of Congress's enumerated constitutional powers that has it purpose specifically laid out.

Proposals like this disgust me.
posted by NortonDC at 6:48 AM on July 10, 2002

NortonDC: The purpose of copyright is not to reward the innovators. That is only a side effect. The purpose is to increase the knowledge freely available to humanity.

But rewarding the "innovators" arguably is how that knowledge is increased. Personally, I like the fact that researchers and artists can get an economic return on their efforts instead of only being able to "create" when they are not waiting tables.

And actually the Patent and Copyright Act's are products of Art.I §8 cl.8, neither has any true specifics laid out in the Constitution itself. But your right NDC, there seems to be no limit on the limited times clause at this point. Unfortunately, Eldred probably is not going to change this. I think the Court is going to give Congress a good lashing about this though. Also keep in mind that the Folklore studies are mostly coming out of Europe and would not fall under the US Constitution, many would fall into the neighboring rights category similar to what the Rome Convention deals with.
posted by anathema at 7:17 AM on July 10, 2002

Rewarding innovators for a limited time is the means, not the end. That is explicitly stated.

And unfortunately the US is currently a member of the WIPO.
posted by NortonDC at 7:41 AM on July 10, 2002

How different is bringing intellectual property concepts to indigenous cultures from bringing Christianity, adversarial courts or 1 person:1 vote democracy to them? This strikes me as nothing more or less than imperialism dressed up in the clothes of the kindly globe-hugger.
posted by holycola at 8:17 AM on July 10, 2002

I see this differently. I see it as an attempt to compensate for the exploitation by the "imperialists." Just because something is being looked at by WIPO doesn't mean that it's evil evil evil. The concensus seems to be that any form of remuneration is bad because of course, some how, it's going to be turned against indigenous peoples. Merck and rest of the pharma industry will be happy to hear this. Changing the fundamentals of IP does not happen overnight, the "information wants to be free" argument is a bit naive. This seems to me to be an attempt at trying to do something positive.
posted by anathema at 8:58 AM on July 10, 2002

Locking up culture and forms of expression behind toll booths = good? Good luck selling me on that one.
posted by NortonDC at 10:13 AM on July 10, 2002

the "information wants to be free" argument is a bit naive.
How about this:
If information is not made free, then certain mechanisms will be implemented to make sure it can only go where it is legal.
And I would contend that any such mechanism would fatally cripple the free speech rights of anyone subject to it.
posted by sonofsamiam at 10:22 AM on July 10, 2002

I don't see this as locking up any culture, a system like this would only be imposed if the information could be localized. I understand the mistrust of WIPO, but I have actually spoken to people who research this stuff for WIPO and they certainly are the "side" of the indigenous people. If this were some conspiracy by the imperialists, we would have already seen some action.
I agree it's problematic, but so is the exploitation that's already happening.
posted by anathema at 10:50 AM on July 10, 2002

FWIW, I'm not a complete apologist. I think the copyright term is a scandal. There should be a separate term for software too, maybe only a couple of years. I recognize that IP systems are flawed, like many things in the law, but I also think that it generally works. Hey, if someone spends ten years writing a novel, I think it's pretty damn cool that they can register the copyright for $30.
posted by anathema at 11:10 AM on July 10, 2002

My main problem is still the precedent it sets. If it becomes okay to have ownership rights to traditional information and ideas, you're opening the door for a land rush as companies try to increase their holdings. Can you imagine what Disney would be like if it could pay a few bucks (or millions) to buy the exclusive rights to Native American folklore? Talk about cultural monopolies. Perhaps such a thing would not be possible right away, but I can't see how this could lead anywhere else. There are better ways to make up for imperialism.

Information does not want to be free, it is free. We impose restrictions through law to suit our purposes.
posted by Nothing at 12:10 PM on July 10, 2002

That's fine, anathema, but what I don't see is any recognition that payment to creators is neither the goal nor the purpose of copyright.

The purpose of copyright is to increase the pool of knowledge, culture and expression available to everyone. Erecting tolls in between art already in the wild created by individuals that are long dead (Maori tattoos, etc.) runs precisely counter to that purpose.

No incentive in the world will get a new painting out of Leonardo. He's dead. So are the people that developed the Maori tattoo style. All that's left to do is to be glad that their contributions enrich the human experience.
posted by NortonDC at 12:16 PM on July 10, 2002

The purpose of copyright is to increase the pool of knowledge, culture and expression available to everyone.

Yes, and they way this has evolved in the culture and in the law is by recognizing the economic side of this. It's not the purpose per se, but all it takes is a few minutes with the Patent Act, Copyright Act, or Lanham Act to see that economics is what is emphasized. This is how we've interpreted Art.I §8 cl.8 (notwithstanding the Lanham Act which stems from common law unfair competition). This messy little thing called property is not going anywhere and I don't think it's so bad to consider some of these things that I linked to.
I totally agree that once there is no longer a reasonable economic incentive then the works should be immediately put into the public domain.
posted by anathema at 12:51 PM on July 10, 2002

I keep seeing this idea that every interaction should have a price tag associated with it, that all exchange of ideas should come at a cost, and I hate it.

I agree. It turns creative effort into prostitution. I'm all for making a lot of money with my book, CD or patent, but locking up IP rights long term to proprietary interests benefits corporations, not individuals, and society suffers as a result.
posted by rushmc at 3:56 PM on July 10, 2002

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